RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-00232
		INDEX NUMBER: A46.02, A46.03,
					 & A57.01

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His Reenlistment Eligibility (RE) code be upgraded.

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THE APPLICANT CONTENDS THAT:

No homosexual acts occurred and the charges against him were based on hearsay.

In support of the appeal, applicant submits letters of reference, an article from the Servicemembers Legal Defense Network, and extracts from his military personnel records regarding the discharge action taken against him.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 13 August 2002, for a period of six years.  On 17 April 2003, he received notification that he was being recommended for discharge for homosexual conduct.  He was advised the action could result in his separation with an under-other-than-honorable-conditions (UOTHC) discharge; however, the commander was recommending he receive an honorable discharge.  The reason for the action was that he attempted to engage in, or solicited another to engage in a homosexual act.  Specifically, that on early-to-mid January 2003, he offered to perform oral sex on a male airman.  On 7 May 2003, he was notified that the discharge notification memorandum was amended to include the Article 15, imposed on 17 April 2003, for willfully failing to refrain from frequenting a local hotel, and that several written statements were added as attachments.  After consulting with military counsel, he waived his rights associated with an administrative discharge board hearing contingent upon his receipt of an honorable discharge.  The discharge authority accepted his conditional waiver and approved the discharge.  He was honorably discharged on 23 May 2003, under the provisions of AFI 36-3208 (Homosexual Act), and issued RE code 2C (Involuntarily separated with an honorable discharge).  He had completed a total of 9 months and 11 days of active service and was serving in the grade of airman first class (E-3) at the time of discharge.

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AIR FORCE EVALUATIONS:

AFPC/DPPRS recommends the application be denied and states, in part, that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  The applicant has not submitted any evidence of any error or injustices that occurred in the processing of his discharge.

The AFPC/DPPRS evaluation is at Exhibit C.

AFPC/JA recommends the application be denied and states, in part, that the primary evidence supporting the applicant’s homosexual conduct was not hearsay and would be admissible in a formal trial or an administrative discharge board.  The statements were from a fellow airman that applicant had offered to perform oral sex upon him and a second airman that applicant acknowledged to being a homosexual.  Moreover, the validity of the discharge does not depend upon whether a homosexual act occurred.  A military member who attempts to engage in homosexual acts or solicits another person to engage in homosexual acts is subject to administrative discharge.  Furthermore, a member who makes a statement that he is homosexual creates a presumption that he engages in homosexual acts, or intends to, or has a propensity to do so, and is subject to administrative discharge. 

The AFPC/JA evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 2 April 2004 for review and response within 30 days.  However, as of this date, this office has received no response.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2004-00232 in Executive Session on 1 June 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.

    Exhibit C.  Letter, AFPC/DPPRS, dated 15 Mar 04.
    Exhibit D.  Letter,  AFPC/JA, dated 30 Mar 04.
    Exhibit E.  Letter, SAF/MRBR, dated 2 Apr 04.

                                   Panel Chair